When a Court Reduces Child Support While Alimony Continues

Massachusetts divorce lawyer Nicole Levy reviews a case of a Probate and
Family Court judge lowering a father’s child support while leaving
alimony unchanged.

A recent unpublished opinion of the Appeals Court,
Thornton v. Thornton(2017), illustrates how a change in circumstances can lead to the lowering of
a parent’s child support obligation without altering the amount
of alimony the same parent must pay. The case was heard by
Hon. Robert A. Scandurra of the Barnstable Probate and Family Court, whose decision criticized
the former husband’s honesty at trial, but ultimately reduced the
man’s child support by $150.00 per week while leaving in place an
alimony order of $200.00 per week.

Child support and alimony awards are each forms of financial support paid
by one parent or former spouse to the other. At their core, both child
support and alimony arise out of earning levels of each party. While other
factors come into play, it is the gross income of the respective parties
that ultimately dictates most child support and alimony orders. In
Thornton, we see that judges sometimes decide that a change in circumstances affecting
one or both parties should cause a reduction in child support, but not
in alimony, despite both forms of support arising out of the respective
gross incomes of the parties.

Table of Contents for this Blog

Thornton: A Long-Term Marriage Leads to $1000 Per Week in Child Support
and Alimony

The Modification: An Industrial Accident Leads to a Request for Lower Child
Support and Alimony

What Comes Next: Will Former Wife be Entitled to an Increase in Alimony
After Child Support Ends?

Thornton: A Long-Term Marriage Leads to $1000 Per Week in Child Support
and Alimony

In 2012, the Father and Mother entered into a separation in
Thornton entered a Separation Agreement after 26 years of marriage. Under the Agreement,
the Father was obligated to pay the Mother alimony in the amount of $200
per week and child support in the amount of $800 per week. The child support
order of $800 per week exceeded the Massachusetts Child Support Guidelines
at the time of the divorce. However, the Agreement provided that this
upwards deviation was agreed upon, and the Guidelines provide that a deviation
remains in place so long as three conditions are met:

(1) “the facts that gave rise to deviation still exist”; (2)
“deviation continues to be in the child’s best interest”;
and (3) “the guidelines amount would be unjust or inappropriate
under the circumstances.”

In
Thornton, the Separation Agreement provided that the child support deviation, as
well as the Father’s alimony payment, arose out the Father receiving
“a significantly larger portion of the marital assets and the Mother’s
assumption of the entirety of the business-related mortgage debt”
on the marital home at the time of the divorce.

The Modification: An Industrial Accident Leads to a Request for Lower Child
Support and Alimony

In June of 2015, the Father filed a complaint for modification seeking
the termination of alimony and a steep reduction in child support. He
claimed that reductions in both alimony and child support were warranted
because his income had drastically reduced as a result of an industrial
accident that he suffered. In July of 2015, the Father unilaterally reduced
his child support payment to $500 per week (without agreement or court
orders allowing him to do so). This prompted the Mother, a nurse, to file
a complaint for contempt.

Notably, by the time that trial occurred in 2016, the parties’ children
were all over 18 years of age. This meant that the Child Support Guidelines
no longer presumptively applied to the case. (The children attended college,
but the issue of college costs was not raised at trial.) The Father had
the burden of demonstrating a change in circumstances that warranted a
reduction in support.

Following trial, the judge reduced the Father’s weekly child support
payments from $800 per week to $650 per week, retroactive to his filing
of the modification. According to the Appeals Court, the reduction was
primarily (but not solely) based on the Mother’s increase in income
since the divorce:

Based on his careful review of the evidence that the father put forward,
the judge found that despite the father’s 2015 injury and the other
economic challenges he faced, his income actually had increased significantly
since the divorce. … Nevertheless, the judge recognized that the
mother’s income had increased since the divorce, and this was one
of the factors on which the judge relied in reducing the father’s
child support obligation. …. The judge also cited the fact that
even though the children were not yet emancipated, they had both reached
the age of eighteen by the time of trial.

The Appeals Court agreed with Judge Scandurra’s rationale, while
noting several keen observations made by the judge. Of particular note
was the judge’s skepticism surrounding Father’s claims about
the reason for the child support deviation at the time of the divorce,
as well as the Father’s dubious loss of income:

It bears noting that the judge expressly discredited much of the father’s
testimony and specifically faulted his
lack of candor with regard to his income, including as reported on his financial statement.
The judge
discredited the testimony of the father’s expert that sought to demonstrate
that the mother could be earning significantly more than she already was.

….

The father points out that the only testimony regarding the reason for
the deviation was his own. Specifically, in response to a question on
cross-examination that sought confirmation that the mother’s agreeing
to assume the business-related mortgage debt was the reason for the award
of child support in an amount greater than the guidelines, the father
denied this and testified that the reason he agreed to pay the specified
amounts “was because I thought if I gave [the mother] more than
the guidelines, I would be able to see my daughter now.”
Of course, the judge was not required to accept the father’s explanation.

Judges have wide discretion and place emphasis on litigants being candid
with the court. In this case, Father was seeking reduction in both alimony
and child support, self-modified the child support, placing a financial
strain on the Mother, and according to the trial judge, was not forthcoming
about his finances. Despite his lack of candor, however, the judge provided
some relief to the Father, reducing his child support obligation by $150.00
per week and reducing the arrears that had accrued due to Father’s
non-payment while the modification was pending.

What Comes Next: Will Former Wife be Entitled to an Increase in Alimony
After Child Support Ends?

After two years of litigation, one imagines that the former wife in
Thornton might want a break from the Court process. However, the facts of the case
leave a clear question in our mind: can and should the former Wife receive
an increase an alimony after the Father’s child support obligation
has ended. Recent case law makes abundantly clear that the termination
of child support
can provide grounds for an alimony increase after children are emancipated.
As we remarked in our recent blog,
Appeals Court: Child Support Ending can Trigger Alimony Increase:

[T]he Appeals Court noted that the termination of child support may be
considered a change in circumstance. The Court specifically noted that
the merger language allowed for these issues to be revisited, and that
the parties saw them as interrelated …

An increase in alimony is hardly automatic following the end of child support,
however. For example, in the case cited in our previous blog,
Pickering v. Mendes (2017), the former wife had experienced a host of medical problems following
the divorce that improved her argument seeking an increase in alimony
after child support ended. Moreover, in another recent blog, we explored
judicial skepticism over
whether child support should increase when alimony ends:

If the loss of child support is a material change in circumstances that
warrants an increase of alimony, it seems logical that the opposite could
have been true in
Von Rekowsky, where [the judge] increased the Wife’s child support by $1,500
while eliminating an alimony order in the same amount. However, the Appeals
Court seemed to take a dim view of this argument …

What is clear is that parties should never rely on nor discount the possibility
that the termination of child support might trigger an increase of alimony
– or vice versa. We have no way of knowing whether the former wife in
Thornton plans on pursuing an increase in alimony after child support ends, but
given the length of the parties’ 26-year marriage, and the relative
youth of the two children, it seems likely that there will be a stretch
of years following the emancipation of the children before the former
husband reaches federal retirement age.

As if to punctuate the question of future alimony, a check of the Appeals
Court docket suggests that the parties were originally divorced on leap
year day, February 29, 2012. As we have frequently blogged, the effective
date of the Massachusetts Alimony Reform Act is March 1, 2012. (That’s
right, the very next
day.)

Under current law, the ARA only provides for the termination of alimony
when a payor reaches federal retirement if the payor was divorced
after the ARA’s effective date of March 1, 2012. Where it appears that
the parties in
Thornton were divorced one day before the ARA became effective – on leap
year day, no less – this may pose an interesting legal issue down
the road if the Massachusetts legislature fails to pass the so-called
Alimony Re-Reform Act (ARRA). The Re-Reform Act would make the retirement
cap applicable to
all alimony orders – regardless of when the parties were divorced –
but as of today, the legislature has not voted on the bill.

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